Municipal Cable Franchising

Bradley Telecommunications Law Group

Municipal Cable Franchising

Bradley Berkland Hagen & Herbst, LLC (“BBHH”) was founded in 1998 for the primary purpose of representing local governments on cable franchising matters. The firm has been a leader in negotiating competitive cable franchises in recent years. The firm has also represented local governments across the country in litigation protecting cable franchising rights and in informal and formal cable franchise renewal negotiations and proceedings. BBHH has also assisted local governments establish adequate PEG funding and Institutional Networks for their communities and developing adequate local code provisions related to cable franchising and the public rights-of-way. The Bradley Telecommunications Law Group includes Mike Bradley, Adrian Herbst, Kristin Berkland, and Leslie Herbst-Saporito, together bringing decades of telecommunications legal experience to the firm.

One of our core competencies is our deep knowledge of federal communications law and our ability in assisting local governments understand how the overlay of federal communications law and policy impacts local franchising and public rights-of-way management. Given the FCC on-going assumption of regulatory authority over many elements of traditional local franchising authority, it is increasingly important for local government officials to understand the interplay between federal, state and local law, as well as the policy issues that are driving many of these changes. We can provide this guidance.

Competitive Cable Franchising

BBHH has addressed the complicated issues arising out of the competitive franchising process on behalf of approximately seventy cities nationwide, including having negotiated the first competitive franchise in the Twin Cities with CenturyLink for the City of Minneapolis and assisted numerous other municipalities in Minnesota in the CenturyLink franchising process. The Firm negotiated the Twin Cities Metro PEG Interconnect Network that will benefit cities throughout the region and allow live program sharing by all participating members. The Firm advises cities on the process it must follow in acting on a competitive cable franchise application and how to address the many different legal issues affecting competitive cable franchising, such as reasonable build-out requirements, the prohibition of economic redlining, level playing field, PEG commitments, and Indemnification. In doing all of this the Firm advises its clients on Federal, State, and local laws addressing competitive cable franchising.

Cable Franchise Renewal Experience

The attorneys at the firm have participated in, managed and negotiated franchise renewals throughout the United States. We have recently completed renewal negotiations on behalf of numerous clients and are currently in the process of negotiating with Comcast for the renewal of several cable franchises and CenturyLink for competitive cable franchises. Since the passage of the Telecommunications Act of 1996, we have negotiated franchise renewals on behalf of numerous municipalities in many different states. We recognize that each franchising authority can have a different experience with their cable operator. We work with each franchising authority to develop a scope of work that will result in the franchising authority meeting its goals at a reasonable cost. We are intimately familiar with the limitations placed on local franchising authorities by the federal Cable Act, the Telecommunications Act of 1996, the FCC’s Section 621 Orders, but seek to construe these limitations in the manner most favorable to local governments in an effort to maximize the financial and in-kind benefits that can be obtained through franchise renewal. We have conducted and overseen numerous needs assessments, compliance audits, technical audits, subscriber surveys and financial analyses, have drafted Requests for Renewal Proposals, and have prepared for administrative proceedings, although it has not yet proven necessary to hold such proceedings. We have also developed creative solutions for renewing franchises informally.

Cable Franchise Transfer of Ownership

BBHH has represented hundreds of cities in complex transfer matters for more than 20 years throughout the country. Our experience is that the Federal Communications Commission’s Form 394 typically does not supply sufficient information to assist cities in determining if a new owner will meet the technical, legal and financial qualifications required by our franchise authority clients. For this reason, we assist our clients in carefully analyzing their existing franchise and other commitments and understandings of the existing provider and requesting additional information from the proposed purchaser to determine if it is willing and able to comply with all existing requirements and expectations of the franchising authorities. Because federal law requires that any approval or rejection occur within 120 days of the receipt of the completed FCC Form 394, we can complete the review process in that time, assuming the cable company provides the necessary information. In the instances when the cable company has not timely responded to our request for additional information, we have successfully argued that failure by a cable company to provide the franchising authority with the information necessary to complete the analysis tolls the running of the 120-day analysis period.

Institutional Networks (I-Nets)

Our Firm has significant I-Net experience having negotiated and enforced I-Net requirements on behalf of numerous clients nationally. Many of these networks are now utilized for video, voice and data communications and are interconnected with other networks of surrounding areas for the seamless transmission and receipt of communications across networks permitting local governments to share video programming and other applications. We have also negotiated for long-term exclusive use of cable operator constructed institutional network assets and for long term exclusive use of dark fiber owned by the cable operator for municipal network purposes.

PEG Access Television

We have extensive experience counseling local governments and public access facility operators on a litany of issues, including (but not limited to):

Protection and enforcement of copyrights and copyright compliance;

Closed captioning requirements under the FCC and ADA rules;

Drafting policies and procedures for the use of public access facilities and equipment;

Resolving First Amendment issues arising out of programming cablecast (or not cablecast) on public access channels;

Drafting channel loan agreements;

Advising government access channel operators on risks and best practices associated with cablecasting political and election programming;

Obtaining additional channel capacity under the terms of franchise documents and state law;

Advising PEG access staff on how to discipline staff and programmers that have violated employee rules and facility policies;

Drafting competitive bidding documents and counseling PEG facility staff on how to purchase equipment pursuant to competitive bidding requirements; and

Overseeing the issuance of bonds and the selection of contractors for the construction of new PEG facilities.

Franchise Fee Audits

We have worked with numerous local franchising authorities on franchise fee reviews, both in the context of franchise renewal and in the ordinary course regulatory and contractual due diligence. We are familiar with and able to quickly negotiate necessary confidentiality agreements to obtain financial data. In addition, we are aware of cable operator’s legal and lobbying tactics that are designed to make it difficult and expensive for financial consultants to obtain the information they need to conduct a franchise fee review, and have developed appropriate responses. For example, we have been able to successfully require cable operators to provide requested data by invoking the franchise enforcement process, issuing notices and violation and beginning enforcement proceedings for drawing on the letter of credit. This aggressive strategy ultimately forced the operator to settle outstanding issues, and to protect and preserve millions in operating support received by the franchise authority, notwithstanding the FCC’s Section 621 franchising orders. We also know when it is not cost-effective or legally viable for a local franchising authority to pursue a particular issue, and we are honest about making those judgments and communicating them to our clients.